New South Wales Court of Criminal Appeal CITATION : REGINA v RICKY JAMES WHITE [1999] NSWCCA 366 FILE NUMBER(S) : CCA 60592/97 HEARING DATE(S) : 20 October 1999 JUDGMENT DATE : 20 October 1999 PARTIES : REGINA v RICKY JAMES WHITE JUDGMENT OF : Mason P at 1; James J at 40; Kirby J at 41 LOWER COURT JURISDICTION : District Court - Newcastle LOWER COURT FILE NUMBER(S) : 97/31/0058 LOWER COURT JUDICIAL OFFICER : Naughton DCJ COUNSEL : Appellant: In person Crown: C K Maxwell QC (for the Crown) SOLICITORS : Appellant: In person Crown: C K Smith CATCHWORDS : Criminal law and procedure - appeal against conviction and sentence - aggravated indecent assault (s61E(1A) of Crimes Act) and aggravated sexual intercourse with child by person in authority (s66C(2)) - alleged inconsistencies in Crown case - claim of bias - sentence - no issue of principle DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL CCA 60592/97 MASON P JAMES J DAVID KIRBY J Wednesday 20 October 1999 REGINA v RICKY JAMES WHITE JUDGMENT 1 MASON P: The appellant was indicted before his Honour Judge Naughton and a jury at Newcastle on three counts in respect of a complainant KLD. Count 1 was aggravated indecent assault (s 61E(1A) of the Crimes Act). Counts 2 and 3 were aggravated sexual intercourse with a child between ten and fifteen years by a person in authority (s 66C(2)). The appellant pleaded not guilty. 2 The Crown called five witnesses including the complainant. The complainant's evidence as to the matters charged was clear and, if accepted by the jury, certainly established the offences charged. The complainant and the other witnesses were cross-examined by counsel for the appellant. 3 After a retirement of about thirty-five minutes the jury convicted the appellant on all three counts. 4 When called up for sentence on 31 October 1997 the appellant asked the trial judge to take into account three other matters concerning another complainant in respect of whom the appellant had been charged with three counts of aggravated indecent assault. 5 The appellant was sentenced as follows: Count 1: A fixed term of penal servitude for one year commencing on 27 October 1997 and expiring on 26 October 1998. Count 2: A fixed term of penal servitude for two years commencing on 27 October 1997 and expiring on 26 October 1999. Count 3: (which took into account the Form 1 matters) a minimum term of penal servitude for five years commencing on 27 October 1997 and expiring on 26 October 2002 with an additional term of three years commencing on 27 October 2002 and expiring on 26 October 2005. 6 The facts relevant to the three counts may be summarised as follows. 7 Count 1: The complainant was a friend of the appellant's daughter or stepdaughter, AR. She used to stay overnight in AR's home. On about 8 January 1998 the youngest daughter of the appellant was in hospital. Her mother, the appellant's de facto wife, stayed in the hospital for a period to be with the sick child. At that time the appellant was living with his de facto wife and the children. The complainant, then aged eleven, stayed overnight with them on one of the nights during that period. Accordingly, it is clear that the appellant had the care and control of the complainant and the younger child, AR, who was about two years younger than the complainant. 8 While the complainant was in bed the appellant entered the room. The complainant saw him but pretended to be asleep. The appellant crouched down beside the bed and rubbed on her vagina over the top of her pants. He then wet his fingers with saliva, placed them inside her pants and again rubbed on her vagina. He then took his hand out and played with the complainant's nipples. Then he left the room. 9 The facts relevant to counts 2 and 3 were that on a night prior to 17 March 1991 AR's mother was not at home. Once again, the appellant had the care and control of AR and the complainant who stayed overnight at the home. 10 The appellant persuaded AR and the complainant to take off their nighties and when both were clad only in panties engaged them in a game of strip poker. By the time both young girls were naked, the appellant persuaded them to position themselves with their knees against their chests. He inserted a finger into the vagina of the complainant. The situation progressed. The appellant took off his own clothes and persuaded the complainant to lie down on top of him so that there was sexual contact. Then the appellant separated the two girls into different rooms and he entered the room where the complainant was and had penile sexual intercourse with her. This act caused severe physical pain. The complainant cried and told him to stop. He did so, but not immediately. 11 The complainant then went to bed. She woke up the next morning to discover the appellant was behind her on the bed with his penis pushed against her vagina. Her own pants, which she had earlier found to have blood on them from injury caused by the penetration the previous evening, had been removed, presumably by the appellant, and she was wearing different panties. 12 She was later told by the appellant that if ever she told her mother or her mother's boyfriend what had happened then terrible things would happen to them. 13 Those are, in broad essence, the facts which the Crown sought to establish and which the jury must be taken to have accepted in convicting the appellant. 14 As I have indicated, the principal witness in the Crown case was the complainant. The appellant's daughter AR was, on the evidence, a clear witness and a person herself involved as a victim in an offence upon her. She did not give evidence at the trial. What was established was that a subpoena had been issued to her and that her reaction to the requirement to come to give evidence was so extreme, including threatened suicide, that real concern was felt by her mother about her well-being should the subpoena be pressed. She was taken to a medical practitioner who, although not a treating doctor, nevertheless interviewed the girl and expressed the opinion on oath, to which she was tested, that the girl was not in a fit condition to give evidence. There was corroboration about this from the daughter's mother who, by that stage, was the prior de facto wife of the appellant. 15 The appellant appeals against the conviction and seeks leave to appeal against the sentence. He has represented himself in the appeal. 16 He provided a letter to the Registrar of the Court of Criminal Appeal outlining his arguments in very summary form. 17 On 17 May 1999 the appellant appeared before a differently constituted Court of Criminal Appeal. He sought and was granted an adjournment to give him the opportunity to prepare and file more detailed written submissions. No such submissions were filed. The appellant, however, put his arguments to us orally. It is clear that he did not find it easy to put his submissions but. Nevertheless, he was able to cover the matters he wanted to put with the aid of notes that he had. 18 The appeal against conviction clearly raised three broad grounds. First, it was submitted that there were contradictions and inconsistencies in the evidence of the Crown witnesses, especially the complainant. We were taken to pages in the transcript that were relied upon. Some of the conflicts or so-called conflicts were differences between the testimony of two different witnesses. A few were said to be contradictions within the total evidence of the same witness. Some, and indeed a significant number of the matters to which our attention was taken - and the detail will appear in the transcript - were not, when properly considered, true discrepancies in that, to give an example: one witness said X and the other witness said, "I can't remember whether X was the case". 19 As to one or two of the inconsistencies which the appellant sought to rely upon in this Court, the basis of the argument really was a statement the appellant made in this Court. 20 All of the matters relied upon by the appellant were matters peripheral to the principal issue. All were explored or, at the very least, open to be explored at the trial. Indeed, many of the matters to which attention was drawn were matters that were brought out in the cross-examination that occurred at the trial. 21 None of the so-called contradictions were of any real cogency. As I have indicated, they all were matters peripheral to the real issue and none of them really in any significant way affected the credibility of the witnesses involved. 22 In my view, the jury were entitled to form their own view as to the credibility of the Crown witnesses. In the jury accepting the Crown case, notwithstanding the matters to which the appellant took this Court, many of which I am sure would have been addressed upon at trial, there was no miscarriage. 23 The second broad attack was the submission that the trial judge should have disqualified himself for bias or the appearance of bias. There was an application, indeed there were two from recollection, at trial by counsel for the appellant. His Honour addressed them in terms and gave his reasons for declining to accede to the applications. 24 We have not been taken to any material in the record which suggests any factual basis for the submission. I have read the appeal book in its entirety and I am not aware of any material which would establish grounds for this complaint. 25 It is true, because his Honour refers to it himself, that at one stage the trial judge described a submission of counsel for the appellant at trial as "nit picking". That criticism has been advanced many, many times to many, many people, probably everybody in this court who has appeared as counsel at some stage in their life. It does not generally, nor in a particular context, represent a basis for perceived bias. 26 The third matter relied upon concerned the circumstances in which the non-attendance of the appellant's daughter or stepdaughter AR was established in the evidence. As I have indicated, a general practitioner was called and cross-examined. She had seen the girl once, but at a time when there had been an extreme reaction to the subpoena requiring her attendance at the particular trial. She gave the basis of her opinion and was cross-examined on it. 27 Notwithstanding what the appellant has put to us today, it was clearly in my view a matter about which the doctor was entitled to give evidence and the jury were entitled to form their own assessment of it. 28 There were directions given as to the way in which the jury should address the issue concerning the absence as a witness, whether for the Crown or the defence, of the young girl AR and I see no error in the way the jury were instructed about that matter. 29 In the written submission it was suggested that the DPP - and by that I take it the reference is to counsel for the Crown at trial - had in effect put an argument to the jury leading the jury to believe that AR was suicidal "because of me". The way the evidence was given shows that considerable care was taken not to suggest directly the cause of AR's concern beyond the concern about having to come and give evidence about matters which would clearly have been distressing to any person and clearly, for whatever reason, were extremely distressing to AR. 30 I see no error or miscarriage in the way the evidence was given or the directions given relevant to the non-appearance of the witness AR. 31 These then were the substantial grounds of challenge to the conviction. For the reasons I have indicated, I am of the view that none were made good and the appeal against conviction should be dismissed. 32 On the issue of sentence his Honour recounted the facts as established. He made the obviously correct statement that sexual assaults upon young girls by persons having their care, control and custody represent heinous crimes and they are so regarded by the community. The need for both general and specific deterrence was, his Honour correctly said, of particular importance in this type of crime. His Honour referred to the impact of the particular offences upon the complainant. He addressed the subjective matters including the appellant's criminal record which, in a word, did not assist the appellant. 33 His Honour turned to the oral evidence that was called in the sentencing proceedings. This evidence consisted of evidence given by the appellant himself, his mother, his younger sister, a paternal aunt and a family friend. His Honour had regard to the appellant's personal history, the fact that he had left school at an early age, had a variety of jobs and was a keen sportsman. His Honour referred to the fact that the appellant lived with his elderly mother whom he helped look after. This was a brief but, in my view, sufficient acknowledgment of the evidence that had previously been given to the effect that the appellant's mother was an amputee and, therefore, had a particular need for assistance from her son. 34 The appellant, in his note to the Registrar as to the grounds of his appeal against sentence, made reference to the judge not taking into account what he refers to as life on protection. I am not clear whether that ground is pressed. His Honour would clearly have been aware of the normal circumstances in which a person convicted of this offence would be incarcerated. I cannot see that that omission, if omission it was, had any impact upon the sentencing process. 35 If I may say so, the sentences imposed were, if anything, on the light end of the relevant spectrum, having regard to the particular situation of abuse and the pain as well as the harm inflicted upon the young complainant in the circumstances that occurred. 36 The appellant also refers, in his note to the Registrar, to the impact upon his own family of his own incarceration. He expressed concern for his daughter and, in particular, for his elderly mother, whose affliction has already been referred to. Imprisonment very frequently has sad and unintended but inevitable consequences upon family relationships. The victim of crime is seldom confined to the victim of the criminal. His Honour was aware of this factor and made reference to it. But it really cannot provide a basis for finding any error in the sentencing process. 37 As indicated, I am of the view that the offences called for at least as lengthy a period of imprisonment as was imposed and I can see no error in the sentences that were imposed. 38 I am of the view that the appeal as to conviction should be dismissed. 39 As to the appeal against sentence, I would grant leave to appeal but dismiss the appeal. 40 JAMES J: I agree with the judgment of the President and with the orders proposed by his Honour. 41 KIRBY J: I also agree with the judgment of the President and the orders proposed. 42 MASON P: Those are the orders of the court. *********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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